Opinion 19-90
September 12, 2019
Digest: Where a law firm’s former paralegal apparently forged the judge’s signature on a divorce judgment and pretended it had been appropriately filed, and the judge has serious concerns about the firm’s supervision of and reliance on the paralegal, the judge:
(1) must report the conduct to the grievance committee if the judge concludes (a) the law firm, through one or more of its employees, deliberately sought to deceive the court, opposing counsel, and the clerk’s office and/or (b) one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates; but
(2) need not take any action concerning the former paralegal, who is neither an attorney nor a judge. As always, if the judge believes the conduct was unlawful, the judge may, in his/her sole discretion, report it to an appropriate prosecutor’s office and/or law enforcement.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); Opinions 17-90; 07-144.
Opinion:
A judge asks about his/her disciplinary obligations resulting from a paralegal’s alleged forgeries. On resolution of a matrimonial proceeding, the judge directed the plaintiff to “settle a judgment of divorce and findings of fact.” Plaintiff’s attorney affirms he/she instructed a paralegal to prepare the documents. The paralegal did so and presented them for signature. The attorney signed them and “believed [they] were submitted to opposing counsel and the Court on [n]otice.” Later, the paralegal said the court had signed the judgment and gave the attorney a notice of entry to sign, along with a document purportedly bearing the judge’s signature and the county clerk’s stamp. The attorney signed the notice of entry and served it on opposing counsel. Eventually, the defendant sought to obtain a certificated copy of the judgment, and could not. On investigation, plaintiff’s attorney concluded the paralegal had forged the judge’s signature on the judgment and only pretended it was appropriately filed. The attorney says the paralegal (now a former employee and recent law school graduate) admitted responsibility in a recorded phone call. Although the judge has addressed the legal issues with respect to the hitherto un-signed divorce judgment,1 he/she remains “concerned about the supervision of the paralegal and the attorney’s reliance on the [paralegal’s] preparation of the judgment roll.” Accordingly, the judge asks if he/she must report the supervising attorney and/or the former paralegal.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge who receives information indicating a “substantial likelihood” an attorney committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).
1. The Supervising Attorney
The judge who gains knowledge of possible attorney misconduct ordinarily has discretion to determine the information indicates a substantial likelihood that a lawyer has committed a substantial violation of the attorney ethics rules (see Opinion 17-90). If the judge concludes this two-prong test is met, he/she must take “appropriate action,” a determination also ordinarily left to the judge’s sole discretion (see id.).
Sometimes, however, the ethics violation is “so clearly serious or egregious that we have said a judge should report it to a disciplinary authority” (id. [citation omitted]). For example, in Opinion 17-90, a client apparently “asked a paralegal to fill out a ‘form’ requested by the police” to access his/her belongings. “Without ever looking at the document” – which was not a mere form, but an order of protection – an attorney directed the paralegal to proceed, and the paralegal then altered the court order by adding a clause granting the client access (id.). In those circumstances, we said (id. [citations omitted]):
In our view, the conduct as described is also clearly serious and egregious because it implicates the lawyer's honesty, trustworthiness and fitness to be a lawyer. Indeed, this scenario raises the troubling possibility that ... the law firm, through one or more of its employees, deliberately sought to deceive the court, law enforcement, and the individual in whose favor the order of protection was granted, in defiance of court directives, and/or one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates. While you are, of course, in the best position to assess whether your observations and conclusions about the situation are accurate, the seriousness of the conduct is “of a kind best sorted out by an independent agency with investigative capability.” Therefore, if you believe the facts as presented to the Committee are true, you should report the conduct to the appropriate disciplinary committee for investigation.
The same principles apply here. This judge is clearly best situated to assess the attorney’s likely level of culpability for the forged document. However, reporting is required if the judge concludes “the law firm, through one or more of its employees, deliberately sought to deceive the court,” opposing counsel, and the clerk’s office and/or “one or more responsible attorneys allowed this situation to occur through extreme carelessness in failing to supervise their subordinates” (id.). As in Opinion 17-90, if the judge believes this standard is met, he/she should report the conduct to the appropriate disciplinary committee for investigation. We offer this guidance without taking any position on proper interpretation of the underlying facts.
Finally, we again note (id.):
If you decide to report the law firm, you must disqualify yourself in all matters where the law firm appears while the disciplinary matter is pending and for two years thereafter. In order to protect the attorneys’ right to confidentiality, you may not reveal the reason for disqualification. Therefore, remittal of disqualification is not available, either while the disciplinary matter is pending or for two years thereafter if the matter is resolved in the law firm’s favor.
2. The Former Paralegal
The Rules Governing Judicial Conduct do not require a judge to take disciplinary action concerning misconduct by an individual who is neither “a lawyer” nor “another judge” (22 NYCRR 100.3[D][1]-[2]). Accordingly, we have said a judge is “under no obligation to report [a non-attorney’s] misconduct to any authority, but may do so in his/her discretion” (Opinion 07-144). Because the former paralegal is not an attorney, the judge has no obligation to report him/her to any authority.2
Of course, if the judge believes the former paralegal’s conduct was unlawful, the judge may, if he/she chooses, report it to an appropriate prosecutor’s office and/or law enforcement in his/her sole discretion.
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1 Following a hearing, at the parties' joint request, the judge signed the judgment nunc pro tunc.
2 On a practical note, it seems the judge does not know where or when the former paralegal may apply for admission to the New York State bar. If so, it would be difficult to ascertain which grievance committee or character and fitness committee would eventually have jurisdiction.